FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-3986
_____________________________
CHARLES JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
___________________________
On appeal from the Circuit Court for Duval County.
Mallory D. Cooper, Judge.
June 18, 2018
B.L.THOMAS, C.J.
In this collateral appeal, we address whether Appellant’s
counsel provided constitutionally ineffective assistance of counsel
by failing to object to testimony by a law enforcement officer who
specialized in training and utilized dogs to track suspects and
detect odors. The officer used his dog “Diesel” to track down
fleeing suspects involved in a home burglary.
At trial, Officer Michael Michener testified regarding
Diesel’s ability to detect odors from someone in an anxious
mental or physical state, running from police or otherwise in a
state of distress. He had worked with the Jacksonville Sheriff’s
Office twenty-two years, with sixteen years as a K-9 handler.
Officer Michener testified that he selected Diesel when the dog
was eleven months old; he personally trained him and had been
working with Diesel for nearly two years. Officer Michener
testified that Diesel was an explosive-detection dog, but also
performed patrol functions, including tracking people based on
odor.
Officer Michener testified that he and Diesel were
dispatched to the scene of a burglary where people were fleeing
from police. When he arrived at the neighborhood, Diesel
indicated that he was sensing human body odor consistent with
the nervousness or anxiety of someone fleeing. The officer
testified that animals react depending on the human odor they
are searching for; people who are fleeing give off a different type
of odor than sedentary people, and based on his experience with
Diesel and other dogs, he can tell when Diesel is indicating
someone has been fleeing. He gave Diesel a command to locate
human odor. Diesel led Officer Michener to a private fence,
began pulling the officer very strongly, and eventually led him to
the backyard of a residence and a shed, where the officer
observed three people hiding. Diesel made contact with one of
the people in the shed, and all three were eventually detained,
including Appellant.
Appellant was convicted of burglary of a dwelling and
sentenced to thirty years’ imprisonment. This court affirmed the
judgment and sentence without opinion. Johnson v. State,
68
So. 3d 238 (Fla. 1st DCA 2011) (table).
The relevant trial testimony between the prosecutor and
Officer Michener, to which Appellant’s trial counsel did not
object, was as follows:
Q: Well, let me take you back then to October, that
particular day on the 29th. Did you do a search with
Diesel?
A: Yes, ma’am, I did.
Q: And what method did you actually use that day?
A: Because of the nature of the information I was
obtaining through the police radio prior to getting there,
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this was what I would consider to be a hot search,
meaning I actively had people that were fleeing from the
police, I had bodies that were going through
neighborhoods. So the most efficient thing to work
towards is the dog’s abilities to capitalize on that, is
what we call an area search. To break that down . . . we
went with what we call a yard search which is a
systematic search of each yard as we go.
Q: And when you’re doing that systemic search with
Diesel, what is he picking up on that will help him
locate a suspect?
A: The command I give the dog is to locate human
odor. That -- that is, in essence, what the command
means to the dog. When we start, I will tell the dog
locate human odor so I’m looking for human beings is
what I’m looking for.
Q: And is there a way that Diesel reacts when he
locates human odor?
A: Yes, ma’am. The animals react definitely
depending on the human odor they happen to be
searching for. Human beings that are running or fleeing
from the police obviously give a different type of scent,
cast a different type of the odor off their body than say
you and I do sitting here today.
Q: Is that because they’re nervous, sweating, that
sort of thing?
A: Sweating, fearful. Anxiety plays a factor into it.
There’s a lot of different factors that play into it, versus
somebody that may have been lost and walked off into
the woods and sitting there. Now, he’s capable of finding
each of them in each of those cases, but the reaction
from him is vastly different for those two.
Q: So based on your experience with Diesel as well as
the other dogs you can tell when he’s indicating on
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somebody that is potentially a suspect who has been
fleeing, say, versus, a homeowner in their backyard
gardening?
A: Yes, ma’am.
(Emphasis added.) According to Appellant’s collateral attorney,
this was “inconceivable scientific testimony that a canine animal
could smell a guilty suspect.” And defense counsel at trial
exacerbated this “inconceivable” testimony on cross-examination
by eliciting even more “incomprehensible testimony”:
Q: So Diesel is trained to detect any human odor?
A: That’s correct.
Q: Now, you stated on direct that Diesel is trained to
pick up on like if somebody’s been running or nervous or
whatever it may be, correct?
A: Yeah. He has self-taught himself that over a series
of involved pursuits . . . .
(Emphasis added.)
Collateral counsel now argues, “Michener acknowledges that
not only is his canine able to sniff out the difference between
guilty suspects and your average Joe, but [Diesel] has apparently
‘self-taught himself’ this miraculous feat.” But notwithstanding
the lavish description by Appellant’s collateral counsel, the issue
here is straightforward: Did counsel provide deficient
representation in failing to object to the State’s direct
examination? The trial court found no deficient performance, and
did not reach the issue of prejudice.
A claim of ineffective assistance of counsel is governed by
Strickland v. Washington,
466 U.S. 668, 690 (1984). To prove
ineffective assistance, an appellant must allege 1) the specific
acts or omissions of counsel which fell below a standard of
reasonableness under prevailing professional norms, see
id. at
690; and 2) that the appellant’s case was prejudiced by these acts
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or omissions such that the outcome of the case would have been
different, see
id. at 692. To prove the first prong, “[t]he defendant
must allege specific facts that, when considering the totality of
the circumstances, are not conclusively rebutted by the record
and that demonstrate a deficiency on the part of counsel which is
detrimental to the defendant.” Blackwood v. State,
946 So. 2d
960, 968 (Fla. 2006) (citing LeCroy v. Dugger,
727 So. 2d 236, 239
(Fla. 1998)). “[T]he two-prong test for determining the validity of
an ineffective assistance claim requires the defendant to
demonstrate that (1) counsel's performance was deficient, and
(2) the deficient performance prejudiced the defendant.” Gibbs v.
State,
604 So. 2d 544, 545 (Fla. 1st DCA 1992) (citing Johnson v.
State,
593 So. 2d 206 (Fla. 1992)) (emphasis added).
Appellant argues that Officer Michener was a lay witness
not qualified to give specialized opinion testimony under section
90.702, Florida Statutes, and Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
509 U.S. 579 (1993). Section 90.701,
Florida Statutes, describes when lay witnesses may give opinion
testimony:
If a witness is not testifying as an expert, the witness’s
testimony about what he or she perceived may be in the
form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy
and adequacy, communicate what he or she has
perceived to the trier of fact without testifying in terms
of inferences or opinions and the witness’s use of
inferences or opinions will not mislead the trier of fact to
the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special
knowledge, skill, experience, or training.
“Of course, ‘[a]ll lay witnesses have some specialized
knowledge—knowledge relevant to the case that is not common
to everyone. . . . Indeed, that is why all witnesses—lay or
expert—are called: to get what they know about the case that
other people do not.’” L.L v. State,
189 So. 3d 252, 256-57 (Fla. 3d
5
DCA 2016) (quoting Paul F. Rothstein, Fed. Rules of Evidence
Rule 701 (3d ed.)).
Here, the officer’s testimony could not have been intelligently
presented without admitting his answers regarding Diesel’s
asserted abilities. But under section 90.701, Florida Statutes,
the question is, first, was he required to “communicate . . .
inferences and opinions [which would] not mislead the trier of
fact to the prejudice of the objecting party.” Here, we think this
criterion was met. The officer could not intelligently present his
observations of Diesel’s actions without expressing an opinion
about the dog’s training and capabilities. And a layperson
understands that a dog, especially a specifically trained dog,
could detect odors that human beings cannot detect or follow.
The use of drug-sniffing dogs, and dogs used to smell and detect
people trapped in rubble, is well known and understood. When
viewed in context, the officer did not attempt to testify that
Diesel could smell a burglar, but only that he could detect odors
of a person in an anxious state attempting to flee, i.e., a “fight or
flight” physiological phenomenon. We further do not think the
officer’s testimony caused unacceptable prejudice to the opposing
party. A jury could believe or disbelieve the officer’s testimony,
as his lay opinions were not unreasonably expressed or based on
any esoteric knowledge or techniques that could not be readily
discredited on cross-examination.
The second question we must answer under section 90.701,
Florida Statutes, is whether the officer’s testimony contained any
“special knowledge, skill, experience, or training.” If so, a defense
objection would have been properly sustained under the statute.
Federal courts have addressed the admission of lay opinion
testimony under a federal evidentiary statute that is
substantially similar and also prohibits such lay testimony from
containing expert analysis:
Federal Rule of Evidence 701 allows lay opinion that “is
limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.”
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Rule 701 permits such testimony if it is based on
“relevant historical or narrative facts that the witness
has perceived,” Teen–Ed, Inc. v. Kimball Intern., Inc.,
620 F.2d 399, 403 (3rd Cir. 1980), and if it “would help
the factfinder determine a matter in issue,” Hurst v.
United States,
882 F.2d 306, 312 (8th Cir. 1989). “While
the ordinary rule confines the testimony of a lay witness
to concrete facts within his knowledge or observation,
the [c]ourt may rightly exercise a certain amount of
latitude in permitting a witness to state his conclusions
based upon common knowledge or experience.” United
States v. Oliver,
908 F.2d 260, 264 (8th Cir. 1990) (citing
Batsell v. United States,
217 F.2d 257, 262 (8th
Cir.1954)). Lay opinion testimony is admissible only to
help the jury or the court to understand the facts about
which the witness is testifying and not to provide
specialized explanations or interpretations that an
untrained layman could not make if perceiving the same
acts or events.
United States v. Espino,
317 F.3d 788, 797 (8th Cir. 2003)
(footnote omitted). In Espino, the Eighth Circuit rejected
arguments that the lay witness could not testify regarding the
weight of methamphetamine, where the witness did not
necessarily weigh every evidentiary item:
Here, these witnesses, particularly Goatley, testified
that they either actually weighed the quantities of
methamphetamine purchased from Espino, or through
their experience knew that the volume sold generally
constituted a certain weight of the drug. These lay
witnesses testified based upon their experience. They
were not attempting to explain any technical or
specialized information, and several of them had
actually used a scale to weigh the methamphetamine.
Id. at 797.
In this case, the officer certainly had the requisite experience
training dogs, but the question is whether his testimony
constituted “technical or specialized information” and was thus
impermissible lay expert testimony. We think Appellant’s
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collateral counsel reads too much into the officer’s testimony in
his argument that the officer offered an impermissible expert
opinion. In essence, the officer was testifying that Diesel could
sense and identify a person running, in contrast to a sedentary
person. While the question containing the phrase “potentially a
suspect” may have been unduly precise, the question can only be
fairly understood to mean that Diesel could detect a person who
had been running, not literally whether they were guilty.
A federal district court has specifically ruled that testimony
by a law enforcement officer about canine-training procedures
was admissible as lay opinion:
The Court will allow Sergeant Skoro to testify as a lay
witness under Federal Rule of Evidence 701. His
personal knowledge or perceptions based on his
experience as a K–9 trainer provide sufficient
foundation for lay opinion testimony. Thus, his
testimony will be limited to opinions or inferences that
are rationally based on his perception and that will help
the jury understand the facts about which he is
testifying. See Fed. R. Evid. 701; United States v.
Espino,
317 F.3d 788, 797 (8th Cir. 2003). Plaintiff's
Motion in Limine on this point is denied.
Abdullahi v. Ungurian,
2006 WL 145076, at *1 (D. Minn. Jan. 18,
2006) (footnote omitted). Federal courts have upheld the
admission of lay opinion regarding other law enforcement
practices as well:
We have previously explained that opinion testimony by
a witness who has not been qualified as an expert
witness under Rule 702 may nevertheless be admissible
under Rule 701 of the Federal Rules of Evidence
provided that such testimony is “‘rationally based on the
perception of the witness,’ [is] ‘helpful to ... the
determination of a fact in issue,’ and [is] ‘not based on
scientific, technical, or other specialized knowledge
within the scope of Rule 702.’” United States v. Santiago,
560 F.3d 62, 66 (1st Cir. 2009) (second alteration in
original) (quoting Fed. R. Evid. 701). We have explained
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further that the touchstone for the admissibility under
Rule 701 of such lay-opinion testimony is whether the
testimony has the “potential to help the jury.” United
States v. Albertelli,
687 F.3d 439, 447 (1st Cir. 2012).
Under this standard, we have deemed testimony
inadmissible “when the jury can readily draw the
necessary inferences and conclusions without the aid of
the opinion.” United States v. Etienne,
772 F.3d 907, 919
(1st Cir. 2014) (emphasis in original) (citations omitted).
We have also explained that helpful testimony is
typically “based on the lay expertise a witness
personally acquires through experience, often on the
job.” United States v. Vega,
813 F.3d 386, 394 (1st Cir.
2016) (quoting United States v. Maher,
454 F.3d 13, 24
(1st Cir. 2006)); see also United States v. Ayala–Pizarro,
407 F.3d 25, 28–29 (1st Cir. 2005). And, we have noted
that “a police officer noticing patterns of behavior across
criminal operations uses straightforward logic to
conclude a defendant's behavior fits within that pattern
and thus, does not need to be qualified as an expert.”
Vega, 813 F.3d at 394.
Accordingly, we have upheld district court decisions
to admit, under Rule 701, testimony from police officers
“translating jargon common among criminals,” even
though not “traditional” lay testimony.
Albertelli, 687
F.3d at 446-47; see also
Dunston, 851 F.3d at 96 (noting
that “[a]pplication of Rule 701 in the drug-trafficking
context is not novel: ‘we have long held that government
witnesses with experience in drug investigations may
explain the drug trade and translate coded language’ for
factfinders through lay opinion testimony” (quoting
United States v. Rosado-Pérez,
605 F.3d 48, 56 (1st Cir.
2010))).
United States v. Spencer,
873 F.3d 1, 14–15 (1st Cir. 2017), cert.
denied,
138 S. Ct. 1030 (2018) (emphasis added).
We conclude that Appellant’s collateral claim was correctly
denied without an evidentiary hearing, as any objection to the
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officer’s testimony would have been overruled, and we thus agree
with the trial court’s same conclusion. Because defense counsel
at trial cannot be deficient for failing to make a meritless
objection, no Sixth Amendment violation occurred.
AFFIRMED.
JAY and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Dane K. Chase of Chase Law Florida, P.A., St. Petersburg, for
Appellant.
Pamela Jo Bondi, Attorney General, R. Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
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